Jake206th

(Too many) Remands are a big source of frustration for Veterans.  Remands are the "Welcome to the hamster wheel" sign.  
This said, having some experience with remands, you need to "know the code".  
The remand (at the CAVC level)  its often something like "failure to adequately explain a reasons and bases for decision".  
So, the board simply denies again, this time explaining why they denied you.  "But wait!"   You have a smart attorney and he explains your nexus is "not up to par".  So, he tells you to get an IMO for an "improved nexus".  Bingo.  YOu get an award.  
So, here is the "remand code":
    Instead of the VA telling you, "your nexus is insufficient", they deny you for another reason, or none at all, because they dont want Veterans to have knowledge.  They want you dumb and broke.  
     So, "crack the remand code", by going back, check your caluza elements.  I think there are "remand codes" for other types of denials, too, such as SMC or earlier effective date.  
     In the case of eed, here is, I think here is how to crack the remand code.  
    Example of cracking remand code for effective dates:
A.  You think the effective date should be July 2, 2009, because that is when you applied.  So far, so good.  Except you just "forgot half" of the effective date general rule, which is THE LATER of:
1.  date of claim
2.  The date the doc said you were disabled.   
so, when WERE you disabled, according to the doctor?  You read the exam, and he gives you a favorable exam, "but does not give an onset (effective date)".  So, what effective date does the VA use?  The exam date...in the absence of a doctor saying otherwise, the VA presumes its the current date.  
     So, the code is to check the exam, and see what date the doc said your disability began.  If he did not specify, you need an imo/ime to show you were disabled with those symptoms 5 years earlier..not the date of the exam.  This is often "The effective date remand code".  

Once again, more proof that the VA cannot just go and try to reduce a veteran's rating while in appeal status.  You can look them up for yourselves. Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007).
In a May 2019 decision, the Board, in relevant part, granted a separate rating of 10 percent, but no higher, for the Veteran's right knee instability.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In a February 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate and remand the May 2019 Board decision as to the grant of 10 percent rating, but no higher, for the Veteran's right knee instability.  Specifically, the JMPR only remanded the issue of an initial disability rating in excess of 10 percent for right knee instability.  All other issues adjudicated in the May 2019 Board decision were not to be disturbed.  See Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007).  As such, the Board will only address this issue in the instant decision.
  https://www.va.gov/vetapp21/Files5/21029278.txt  

Oh, yes.  Its an "automatic" conflict of interest, to have "your opponent" at law control YOUR evidence.  The VA "gets away with this madness" because they have convinced that a lie is the truth:  You know, the one where the VA system is a Veteran friendly system, where the VA wants to give all benefits due to the Veteran and assist him with same.  The one about the "benefit of the doubt" goes to the Veteran crapola.  
If this was a claimant friendly system, then why does VA have 500-600 lawyers (their estimate), who's only job is to oppose Veterans appeals?  Why are half of those lawyers not available to represent the Veterans interests, not the VA?
The news reported, a number of years ago, that The Chief Justice of the Supreme Court, Roberts, was "startled" to hear that the VA takes a position against the Veteran that is "unsubstantiated" about 80-90 percent of the time.  
Get what that means.  It means that VA lawyers "take a position" against a Vet appealing his benefits that is, shall I use the term "bogus"?  (instead of "unsubstantiated"?). 
Its the reason that EAJA pays the Veterans legal fees (at the CAVC level) almost every time the Veteran wins.  Many lawyers will accept Veteran claimants "just for EAJA fees" knowing, VA will launch bogus BS against the VET.  The question is "why".  
Well, I know the answer.  Short answer.  Because the VA CAN.  The VA opposes the Veteran because they hope the Veteran will give up, or die, or maybe the attorney will miss a critical deadline, such as a one of many mandatory deadlines the Veteran and his representative have to deal with.  Veterans sometimes even withdraw their appeals, often because the VA lets or even makes us think that continuing the appeal will delay other claim issues.   And they are right, many Veterans become to weak to fight the VA, die, or a mistake is made somewhere along the line which costs the Veteran his claim.  

Hey BroncoVet,
Thanks for the insight and I haven't had any issues with the ones I received in 2018-2019.  My point is that if the exam results are not made avaialable to the veteran once the decision letter is generated, they are seriously impeding the ability for the veteran to have a proper appeal.  As you know, without this information you have absolutely no idea as to what the C&P doc said, rated your severity as nor any other issues they  may have documneted/opined on that could potentially assist you in getting a proper rating.    This is in direct violation of the VA's mandate of duty to assist.  
Bottom line is it should not matter where the C&P originated from, once the raters have the data in order to make a rating decision, that same data must me made available to the veteran so they can make an assessment on their appeal options within the time required. The process should automatically include a copy of the report going to the veteran no matter if it is VBA or QTC.

Or how Veterans were exposed to low levels of Sarin nerve agent, and the VA allegedly knew about it and covered it up, then they were exposed by a whistleblower. At least it triggered a study.
https://www.military.com/daily-news/2022/05/17/researchers-think-theyve-found-cause-of-gulf-war-illness.html
 
This study back in 2013 showed how wind blew this agent over distances. The 2022 study apparently considered this study also.
https://www.usatoday.com/story/news/world/2012/12/13/sarin-gas-gulf-war-veterans/1766835/
Study: https://www.karger.com/Article/FullText/345124
 
 
 

I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

I did it myself. DAV had been pretty useless in my appeal.

I did submit on a21-4138. I’m pretty sure mine was done at a DROC (decision review operations center), not a regular RO, since it was part of an appeal decision.

@SPOThat's fantastic! Congratulations!

So I rolled the dice and went with and HLR.  10 days after submitting, I show retro payment in my payment history and the correct effective date on my benefit summary letter.   This brings me to a close with my VA claims.  100% P&T with the correct effective date.  Thanks to everyone on here!  Your advice and personal experiences have been invaluable.  I hope someone else can take these experience and posts to reach their VA goal as well.  THANK YOU ALL!

Based on my most recent remand, it states: "With consideration of all the evidence of record, re-adjudicate the claims for entitlement to an initial rating in excess of 00 percent for "disability name" prior to Month DD, Year, and to restoration of a 00 percent rating for "disability name" as of Month DD, Year.  If the benefits sought on appeal remain denied, the Veteran should be provided an SSOC.  An appropriate period should be allowed for response before the case is returned to the Board, if otherwise in order".
Well, the RO restored my rating but never address my initial rating percentage. 

On page three of this thread, I mention CLEMENS V. SHINSEKI. 
Veterans are not medically trained, and the VA is supposed to service connect symptoms not diagnosis. Yes, veterans still need diagnosis, but the veteran can still win their benefits based on symptoms. That was the point of CLEMONS V SHINSEKI. 

@pacmanx1It's been a while since I read Bernard v. Brown. Reminds me of when I originally filed. The VSO typed up a vague one sentence statement on the form saying I was requesting SC for problems with neck, back, etc... without being too specific.
 

So I'm taking my chances and going HLR with this statement.
In the 11/30/2021 ratings decision I was assigned a 0% rating from 11/16/2018 to 07/07/2020 for all the items listed on on the
VA form 20-0996 (dated 2/09/2022). The effective date of 07/07/2020 for the all of these evaluations should be adjusted
11/16/2018. This is based on the previous application of CFR § 3.25(h)(1) in my supplemental claim decision, dated
07/31/2020. In this decision (07/31/2020) the effective date for the 2 items that were granted (Psoriatic arthritis of the back at
20%, and Psoriatic arthritis of the hip at 10%) were assigned an effective date at those percentages from 11/16/2018. It is
noted in the 07/31/2020 decision that this date is awarded because the claim has be continuously pursued in accordance
with CFR § 3.25(h)(1). This claim still falls under this regulation because I filed an appeal within 1 year of this decision.
The ratings decision dated 11/30/2021 used the same C&P exam, dated 07/07/2020, information as the supplemental claim
(07/31/2020) to justify the ratings percentages assigned, but assigned different effective dates. In addition, a 0% rating from
11/16/2018 to 07/07/2020 cannot be justified if it is based on the results the initial C&P, dated 04/19/2019, because it was
inadequate. The reasoning for this is explained in a statement I filed as part of the supplemental claim. Since the initial
exam was inadequate, the VA did not meet its duty to assist in providing a thorough and complete medical exam to evaluate
the severity of my conditions until 07/07/2020. Therefore any previous C&P exam should not be used to attempt to justify a
lower rating percentage or effective date.
In all the VA inequitably and inconsistently applied the regulations concerning assignment of effective dates and this
negatively impacted my overall rating, financial situation, and effective date of my permanent and total designation, thus
affecting availability of other benefits I should have had access to.

As of 2021 the BVA is still using BERNARD V BROWN. Here are a few decisions.
Entitlement to service connection for a nightmare disorder is granted.
Decision Date: 10/12/21 Archive Date: 10/12/21 
The Veteran's claim was remanded by the Board in a May 2020 decision.  The Board directed the RO to obtain VA treatment and private treatment records, schedule the Veteran for a VA examination, and then re-adjudicate the appeal.  The Board finds that the RO did not substantially comply with the March 2020 remand as the RO failed to re-adjudicate the case and issue a supplemental statement of the case after receiving new and pertinent evidence, including VA treatment records and a VA examination.  See 38 C.F.R. § 19.31; see also Stegall v. West, 11 Vet. App. 268 (1998).  Nevertheless, the Board finds that a remand is unnecessary and may proceed with the adjudication of the claims herein without any prejudice to the Veteran given the favorable findings below.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  
https://www.va.gov/vetapp21/Files10/21062958.txt 
After the hearing, the record was held open for an additional 90 days, so until July 7, 2021, to allow the Veteran time to obtain and submit additional supporting evidence and/or argument, which he later did within the time specified. However, at the end of the 90 days, he also requested another 60 days to submit still more evidence supporting his claim. No additional evidence is needed, however, since, in this decision, the Board is granting an even higher 50 percent rating for his headaches which is the maximum permissible schedular rating for this disability. Thus, he is not prejudiced by the Board going ahead and preemptively doing this. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). He also clarified during his hearing that he is not claiming derivative entitlement to a total disability rating based on individual unemployability (TDIU), so the Board need not address this additional issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 
A higher 50 percent rating is granted for the migraines for the entirety of the review period so effectively since June 5, 2014 
https://www.va.gov/vetapp21/Files7/21046750.txt  
Re-adjudication of the claim for service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma is granted. 
Initially, as discussed above, this appeal warrants re-adjudication on the merits based on VA's receipt of new and relevant evidence since the final July 2016 rating decision. Because the AOJ did not find that new and relevant evidence was received, the AOJ has not yet adjudicated the claim on the merits. Generally, where the Board finds re-adjudication of a claim is warranted, but the AOJ did not, the case must be remanded for AOJ adjudication with consideration of the merits of the claim in the first instance unless there is a waiver from the appellant, or no prejudice would result from the re-adjudication of the claim. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); see also Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993).
https://www.va.gov/vetapp21/Files6/A21010498.txt

Yes, no but not really. In my particular case, yes there are handwritten documents. No but not really because the VARO do not even have to review my entire records because this remand goes all the way back to both a CAVC Decision (joint remand) and a BVA Decision (grant). The review of my records has already been done by the CAVC and the BVA. I referred the VARO to review these two decisions that clearly furnished them with enough evidence of symptoms, treatment dates, and diagnosis to correctly rate my rating percentage and correctly assign my effective date. No need to do a search for anything just review my prior CAVC and BVA decisions. I can’t figure out what the problem is or the hold up. Yes, this is both a continued pursuit remand and a remand based on 38 CFR 3.156b.
To truly get even more crazier, 38 CFR 3.156 and BERNARD V. BROWN 4 VET. App. 384, 390 (1993) states: “ONCE A CLAIM IS REOPENED, A CLAIMANT IS ENTITLED TO HAVE HIS/HER CLAIM RE-ADJUDICATED ON THE BASIS OF ALL THE EVIDENCE OF RECORD, BOTH OLD AND NEW”. There is really no need for my remand to still be pending. Even though I know the VARO knows this, it is part of their own procedure and should be included in their training for reopen claims. All evidence was accepted by the CAVC and the BVA now the VARO is saying that some part of the evidence is not good enough. If that was the case, why was my claim increased?  My BVA decision used the same evidence to warrant my 1998 effective date and the symptoms were exactly the same. My BVA decision states that my current symptoms are the same symptoms I was treated for while on active duty and found my lay statement credible, thus my direct service connection.

@pacmanx1I had something like that happen about 10 years ago. The VA sent a proposal to reduce and I promptly responded with evidence to justify continuing the rating %. Next letter I got was a decision reducing my rating % saying I never sent any evidence. I sent my return receipt card proving they received it, but they simply said I sent them something. I felt I was deemed guilty before proving my innocence. I got a paper copy of my c-file in the mail later and found it was stamped on the back with a date matching the receipt card. Took them about two months to fix it and another month for the retro to be applied.
In many cases, the person working claims now relies on search features to locate terms which might not always be typed correctly. However, I have a feeling many of your older records are handwritten, like mine, which are difficulty and nearly impossible to search unless done manually. They rely on the searches because they are under pressure to turn around claims as quickly as possible. 
 
@SPOI believe your quote from M21-1 is spot on. Look up the regs requiring goinometer use and cross those with the presumption of regularity which says government employees are assumed to have performed their duties adequately. Your lay statement indicating they did not use a goinometer and failed to measure all claimed joints is direct eyewitness proof that presumption of regularity did not apply here. That should effectively classify the C&P exam as being inadequate.
I hope you don't have to go through all the red tape I endured, but perhaps a similar result will occur. My initial claims were filed in 1995, denied instantly, and then appealed to the BVA who in 1997 ordered C&P exams be performed. More denials despite the evidence being solid, so back to the BVA who determined the 1997 exams were inadequate. They ordered another round of exams which happened in 1999. In early 2000, I was finally granted SC with retro going back to 1995. They used the date I left the service because I had filed just a couple of months after getting out. In 2008 I filed more claims which were finally decided in 2013. The VA granted be an effective date of 2008 when I filed. Some of the claims were staged because they were increases. The VA simply used my medical records to determine when I met higher rating %s.
Other members and VSOs say go straight to the BVA. However, I weighed the timeframes between supplemental, HLR, and BVA. I chose to take the route in that exact order. Give the supplemental team a chance to hopefully get it right. Most of the time they jacked it up, but I was surprised they did get it right a few times including granting one CUE. They usually took about three or four months to turn things around. The next stop was supplemental to let someone with more experience take a look. This process took about six to 12 months and in all but one or two cases, they corrected the errors made at the supplemental level. The only times I took something to the BVA was in 1995, 1997, and again early last year. In the late 1990s, it took about 12 to 18 months each time. With the covid factor today, my appeals have been sitting at the BVA for about 10 months without a docket number. I assume my video appointment will sit idle until 2023 or 2024. Unless there is a hardship factor, it's likely the BVA will take a very long time nowadays, especially with the legacy claims taking priority. However, if you have an issue which was remanded by the BVA, I would at least hope they would take your case for another look before taking mine. 

That's a tough one. In 2018, you probably did get service connected, but by the exam that was performed at that time was only rated at 0. Now afterwards, you had another exam, maybe ie, you met rom that qualify for 10, they used the most recent exam.  Did the first examiner uses a goniometer or eyeball method? What about the second exam?
You need to do some homework. Study all of your c&p exams. 

Flip a coin, it is really a toss-up. The HLR can award the correct effective date but will they. If the deny your request, you can still file a claim back to the BVA. With the HLR you never know until after you get your decision, and it can take between three months to a year or so then waiting for the BVA again about a little over a years’ time. Going straight to the BVA, you will most likely get a better result, but it still may take a little over a years’ time.
 

As of today, my appeal was officially closed.  Overall I won.  I was granted 100% P&T, even after some additional exams.  However they effective date only went back to July 2020 (date of my last c&p),  I originally submitted in November 2018.  So missing close to 2 years of pay.   The supplemental claim which this appeal was based on did grant me a couple items, which were dated all the way back to November 2018.   That decision stated this was because the claim was continuously pursued. My appeal was filed less than a month after the supplemental decision, so in a timely manner. This appeal implementation decision did not use that logic and decided the date of the c&p was the first time they had evidence (I was given 0% rating from November 2018 to July 2020 on most items).  Now the question is do I HLR and try to argue they used 2 different methods to determine effective date based on the same evidence, or take it right back to the board?  one guy at DAV said take it to the board so they don’t mess with anything else, but I’m not sure if there is any truth in that.

Somethings have change, under the AMA program, an appeal straight to the BVA should take no more than a years' time but due to covid it may take a little longer but nowhere near the legacy program. Most important, it is illegal for the VA to reduce a veteran's rating while in the appeal status, it is called a ("Mischaracterization of issue(s) on appeal"). I just went through this and the BVA made to RO restore my rating that they improperly reduced. Claims on appeal have their own protection.

I have seen this but never really got into it.
With that been said I would go the higher level review than
An see if they get it right and if they play with the rating u got this law or reg to fight it at the bva or court.
You have some angles to think about.

One of the big problems, IMHO, is that the morons (people who work the claims) who screw up never pay any price for ruining disabled vet's lives.. the people who screw up continue with screwing up more people and probably going up the food chain, with raises, vacations, etc, while the poor vets are either limping around, homeless, or says 'F' it! and kills themself..

If they had an 'intake' process where you could actually present your claim to someone that actually cared, instead, you give it to someone who looks like they just got off a greyhound bus, who has this 'F' I wish I wasn't here, in there eyes, and don't cross the yellow line on the floor with a rubber stamp next to a copier... if you could say hey, I have this problem, and while I served, so I need to know if this form is correct, and is this the right form, etc.. instead... you get a form, say, hey I still have a broken ass, or still lead in there, from all that work, and then they take two years to tell you denied, and then you say can I talk to someone in another 2 years, to tell your story, at that point 2 or 3 years has passed... and that condition you came in with is now terminal and you are counting the days and weeks until you either get your appeal, or you die, which ever comes first... and if they don't understand your claim, why the hell don't they pick up the frakkin phone, call and ask to clarify something, instead of the deny rubber stamp!!

So, let's put a system in place that everyone who screws some vet out of their claim, gets fired or demoted... and those that actually care get to stay and maybe even raises and vacations...
If they actually do catch fraud they get some award for doing their job correctly...

When they process the claim they should have to sign an affidavit that says they actually read the evidence... period...
lying sacks of $%%%##@..

The anger and resentment they foster is biblical....

I sued my DAV rep long ago- in a Federal District court.
He will never treat widows of disabled veterans ,like he treated me, again. 
The DAV is a Wonderful organization- they do far more than employ vet reps -and help vets in many other ways- and DAV does rank pretty wel in reprentation,  annually in the annual BVA report to Congress- it is on line at their site.
They asked me a few  months ago to volunteer for them re: VA Benefits and claims issue- maybe to write for their newletter-.I am still thinking about doing that- but I have a full plate already-rearding volunteer jobs.
 
If you had a prior VSO from a different org- by all means, recind the POA with DAV and the VA, and get some real help.
It is  shame that a few DAV NSO dopes can hurt  what the DAV really is all about.
If a NSO,VSO, vet rep etc etc etc .agent, lawyer causes .by their documented errors, that have cost you compensation,  cost you cash-you can sue them.
A TDIU vet did years ago and that post is here somewhere.
added- here is the BVA Chairman;s Report to Congress  for 2021- it i page 39
https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2021AR.pdf
You can readily see how well lawyers do, and the DAV still has a very good win record.

I consider my first DVA the best.  He made me record "residuals of" for all of the items he could find in my medical file which was reasonably short.  Especially for hospitalizations, everything does not make it into the hospital summary.
Example, the Army recorded hospitalizations summaries of only the rehabilitation in the medical record.  For those who went to rehab, it is necessary to get the IPTR (inpatient treatment records) from archives, especially those whose records were damaged in the fire.  The IPTR were housed in a different building and are in good shape.  My Navy OPTR (outpatient treatment record) went to the VA before the fire, so they are fine.  My problem is the VA lost my OPTR in 1987 or 1988 so the record had to be rebuilt from a copy of a copy made in 1985.  So two years of progress notes are missing and only those made in a new file after the loss are available.
Before you write your congressman about mistreatment, get a copy of you VA OPTR file.  Probably not a problem now since they are on a centralized computer, but I would download them anyway.  Especially, you need to download the report you are complaining about. 

Buck52, I agree with you but I doubt the VA is going to do the right thing and make our own records accessible to us entirely. It would open up all kinds of appeals and claims for their errors and more importantly, to the VA and Congress, a whole boat load of financial hits. They just ain't going to do it IMHO. No one is going to convince me that the 3 proposal to change MH, Tinnitus and SA is in the best interest of the veteran. Tinnitus and hearing are the two most disability claims. If they make tinnitus a symptom of hearing and not a stand-alone disability, how much will that save the VBA is payouts annually?  Beaucoup, brother.